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1961 Supreme(Guj) 65

Gujarat High Court
Judgename :P.N.BHAGWATI
MOHANLAL DHANJIBHAI MEHTA - Appellant
Versus
CHUNILAL B.MEHTA - Respondent
COMPANY PETITION 10 of 1960
Decided On : 07/05/1961

Advocates Appeared: J.M.THAKAR, R.J.DAFTARI

Headnote:

Indian Companies Act 1913 - Section 153c - Internal management or affairs - Order against Company - internal management or affairs of Company for which procedure of winding up cannot be legally used - Fact that majority of shareholders including an independent shareholder like Government of Gujarat are against winding up of Company and desire Company to continue is an important circumstance which must weigh with me in deciding whether court should or should not make a compulsory winding order against Company - Course if court hold that substratum of Company is gone this consideration would be entirely irrelevant – Held, last argument advanced by learned Advocate General was that there was no reasonable hope that object of trading at a profit with a view to which Company was formed could be attained and that substratum of Company must therefore be deemed to be gone - Learned Advocate General pointed out to me that gross income of Company amount derived from rent of factory recovered from Messrs - Commercial Sales Agency - Out of this gross income an average expenditure of amount would have to be met while dividend on preference shares would come to about amount This would only a sum of about amount out of gross income which would be hardly sufficient to provide for depreciation - If allowance for depreciation was made as it must be in conformity with principles of accountancy nothing would be left out of which any dividend could be declared for ordinary shareholders - Learned Advocate General contended that the Company would thus continue to exist for the benefit of Messrs - Commercial Sales Agency and the holders of preference share – court afraid court cannot accept this contention - Rent of amount per year is not going to be a permanent feature of Company - Petition dismissed.

P. N. BHAGWATI, J.

( 1 ) THE main relief sought in the petition was under section 153c of the Indian Companies Act 1913 and the relief of winding up was only an alternative relief. The learned Advocate General who appeared on behalf of the petitioner did not press for the relief under section 153c of the Indian Companies Act 1913 but confined his arguments to the alternative relief for winding up. This he could do because even for claiming relief under section 153c of the Indian Companies Act 1913 the petitioner had to establish that the facts were such as would justify the making of a winding up order on the ground that it was just and equitable that the Company should be wound up and that it was because in his submission to wind up the Company would unfairly and materially prejudice the interests of the Company or any part of its members that the petitioner did not want the Company to be wound up but wanted relief under section 153c of the Indian Companies Act 1913 The petitioner had in any event to establish that it was just and equitable to wind up the Company. If the facts were such as justified the making of a winding up order on the ground that it was just and equitable to do so the petitioner could always abandon the relief under section 153c of the Indian Companies Act 1913 and ask the Court to make an order for compulsory winding up of the Company. The only point which I have therefore to consider in the present case is whether there are sufficient reasons for making a compulsory winding up order against the Company on the ground that it is just and equitable that the Company should be wound up. Before I proceed to deal with the arguments advanced by the learned Advocate General in support of the petition I must observe that this is a shareholders petition. The principles applicable in dealing with a shareholders petition are now well-settled and may be stated in the following words of Chagla J. as he then was in Re The Cine Industries and Recording Company Limited (XLIV Bombay Law Reporter 387) at page 398 :. . . It is true that as the law stands to-day he is under no disability as compared with a contributory nor is he under any obligation as he at one time was to satisfy the Court that on a winding-up there would be surplus assets. But there is a special rule that the Courts have laid down in exercising their discretion in winding up a company on the petition of a shareholder. The Court constantly bears in mind that the internal management of the Company is its own concern and it is a much better judge of business prospects of a trading venture than the Court can ever hope to be. If therefore the majority of the shareholders show confidence in the management of the company and have faith in its future prospects the Court has rarely interfered. In Pioneer Bank Limited In the matter of Chaniram In re (1914) I. L. R. 39 Bom 16 Mr. Justice Macleod stated that a shareholders petition must be scrutinized much more carefully than a creditors petition. In In re Suburban Hotel Company ( 1867) L. R. 2 Ch. App. 737 Lord Justice Cairns refused to wind up the affairs of the Company against the wishes of the majority of shareholders of the Company because the business had been carried on at a loss and appeared likely to continue as a losing concern. Similarly in In re London Suburban Bank (1871) L. R. 6 Ch. App. 641 the majority of the shareholders were opposed to a winding up and there too the order was refused. It is clear from these decisions that it is a well settled principle that as between shareholders the wishes of the majority shall prevail. It is very important. said James L. R. in Re Langham Skating Rink Co. (1877) 5 Ch. D. 669 that the Court should not unless a very strong case is made take upon itself to interfere with the domestic forum which has been established for the management of the affairs of a Company. There must be strong ground for exercising the power of interference at the instance of a shareholder. The



















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